Copyright Laws Slow DPLA

As the Digital Public Library of America approaches its April 2013 launch, copyright laws still hinder the library’s ability to make a wide array of written materials accessible to the public.

Two years into its initial efforts—the DPLA was first envisioned in October 2010, soon after Harvard withdrew its collections from the Google Books digitization project due to legal concerns—primary founding member and Harvard University librarian Robert C. Darnton ’60 boasts that the DPLA has the potential to become the “mother of all libraries.”

But as the project moves forward, the problem of digitizing copyrighted material, essential for public collections, remains unsolved.

A series of legal decisions may affect the future of the project, which is currently based at Harvard’s Berkman Center for Internet & Society and has filed to be a stand-alone corporation and nonprofit organization.

The “magic date” is 1923, said David O’Brien, senior project coordinator at the Berkman Center—anything published before that year is fair game to be made public.

For other copyrighted works, protection extends for 70 years after the death of the author. Consequently, when the DPLA—which can only include works in the public domain—launches in April, its collections will lack the bulk of literature written in the 20th century.

“There is certainly a desire that at some point the DPLA should have in-copyright works,” O’Brien said. “The question is how to accomplish that in a sustainable fashion.”

Darnton also referenced a recent court decision regarding the limitations on exclusive rights for copyright holders. The ruling addressed the provision of “fair use,” the concept that copyright can be circumvented in certain cases to facilitate the production and dissemination of works to the general public.

The DPLA is “exploring the possibility of adapting the fair use provision” to make digitized works available, Darnton said. “We are doing this for the public good.”

Another legislative question that concerns DPLA is the matter of orphan works, copyrighted materials for which the original owner cannot be found after diligent search. The U.S. Copyright Office is currently reviewing protection rights for these works, estimated to number in the millions, according to Darnton.

James A. Leach, chairman of the National Endowment for the Humanities, which is a funder of the DPLA, said he expects that Americans will become more open to digitizing works under copyright.

“I doubt that the laws will be overturned,” he said. “I think what’s going to happen over time is that there will be accommodations made to copyright laws.”

Darnton also said he feels optimistic about the impending legal battles over copyright laws. “People defend their copyright ferociously—and rightly so,” he said.

The Authors Guild and Association of American Publishers are the two primary opponents to open access, he added, with authors arguing for their right to continue collecting royalties from their published work.

Yet Darnton does not see a conflict between these authors’ interests and DPLA’s mission. As a potential solution, he proposes a “moving wall” of digitization that would only provide free online access to material that was published more than 10 or 15 years ago.

DPLA proponents agree that the revolutionary nature of digital platforms calls for new and innovative legal solutions.

“I think that one of the greatest challenges of the digital age is to figure out how to take advantage of what digital materials permit,” said Paul N. Courant, dean of libraries at the University of Michigan and a member of the DPLA steering committee.

“The pot of gold has a lot of gold at the end,” he said. “But it’s going to take a while to figure out how to get there.”

—Staff writer Nikita Kansra can be reached at nkansra01@college.harvard.edu.

—Staff writer Sabrina A. Mohamed can be reached at smohamed@college.harvard.edu.